Canadian Refugee Procedure/Principles for the interpretation of refugee procedure

Fundamental justice requires that a tribunal which adjudicates upon rights must act fairly, in good faith, without bias and in a judicial temper, and must give the opportunity for parties to adequately state their case.[1] The standards of conduct for the Board are fundamentally based on and recognize two principles: (i) that public confidence and trust in the integrity, objectivity and impartiality of the IRB must be conserved and enhanced; and (ii) that independence in decision-making is required.[2] This section of the book will explore the principles that have been used when interpreting these requirements in the refugee context.

Procedural fairness interpretation principles as derived from caselawEdit

The following are some of the principal principles regarding the interpretation and application of procedural fairness as they have emerged in the refugee context caselaw:

Principles about the expectations that one reasonably has of the BoardEdit

  • A high duty of procedural fairness is owed in the refugee context. The court has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[3] This obligation arises not only from Canada’s domestic administrative law, but also from Canada’s international commitments and obligations; in Agiza v. Sweden, the UN Committee against Torture found that article 3 of the CAT carries with it an implicit right to an ‘effective, independent and impartial review of a decision to expel’.[4] The Board's duty of fairness is also said to be heightened when it is dealing with self-represented claimants: Canadian Refugee Procedure/Counsel of Record#The Board has a heightened duty of procedural fairness when dealing with self-represented claimants.
  • The tribunal and its procedures should be as accessible as possible.[5]
  • The Board’s procedures should be predictable. The basic principles of equal protection and due process reflected in the American Declaration of the Rights and Duties of Man require predictable procedures.[6] Canada’s position is that it implements the relevant parts of the American Declaration using the standards and procedures of the IRPA.[7] Similarly, UNHCR states in its Procedural Standards for Refugee Status Determination that "RSD applications must be processed pursuant to transparent and fair procedures".[8]
  • It is not the Board's role to provide legal advice to claimants. In Sundaram v. Canada the Federal Court stated that it was "not prepared to read into the immigration scheme an obligation on officials to give advice on practice and procedures. The situation of giving advice is markedly different from those Court decisions which have held that officials must provide prospective applicants with the necessary forms. People are entitled to government forms; they are not entitled to receive free legal advice from RPD officials."[9] Put another way, "it is not the obligation of the Board to 'teach' the Applicant the law on a particular matter involving his or her claim".[10]
  • The Board must not fault parties for its own deficiencies. For example, in Huseen v. Canada, the government pointed out that the IRB Office in Toronto only received a venue change request one day before the abandonment hearing. The court commented "this speaks to the internal communications between regional offices at the IRB, as the Calgary IRB office was handed the change of venue request, in person, about three weeks prior. It would be unfair to fault the Applicants for the Board’s delay in internal communications, over which the Applicants had no control or influence."[11]
  • Decision-makers should prepare thoroughly. The Code of Conduct for Members of the Immigration and Refugee Board of Canada provides that "Members shall make each decision on the merits of the case, based on thorough preparation, the assessment of evidence properly before the member and the application of the relevant law."[12]
  • Decision-makers should consider all of the evidence before them. There exists a presumption in Canadian refugee law that decision-makers have considered all of the evidence before them.[13] The more important the information, particularly where it contradicts a finding being made, the more the requirement that it explicitly be referred to and distinguished in the reasons provided. This requires time. Asylum cases are said to be ‘highly fact intensive and depend upon presentation and consideration of numerous details and documents which can take no small amount of time.[14] Evidence from previous social psychology studies of judging suggests a relationship between time taken and accuracy. Judges with higher caseloads have been found to be more likely to make inaccurate decisions, as they rely less on deliberative reasoning and careful processing of information and more on their gut feeling and intuition.[15] But see: Canadian Refugee Procedure/The Board's inquisitorial mandate#The Board should consider the most up-to-date country conditions evidence.

Principles about the expectations that one reasonably has of claimants and counselEdit

  • Parties are responsible for their own files. The Federal Court has noted that there exists "[abundant case law] to the effect that the applicants are responsible for their files and cannot use their own wrongdoing as a means to justify fatal omissions, procedural though they may be."[16] While "a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, [] at some point a claimant will be considered the author of their own misfortune."[17]
  • Claimants may be expected to submit asylum claims promptly. Article 31 of the Refugee Convention provides that states shall not impose penalties on asylum seekers, but only if they present themselves to authorities without delay: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."[18] Similarly, Canada's Federal Court has noted that claimants may be expected to submit asylum claims promptly: "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly".[19]
  • Parties should be aware of the information on file. The Board Policy on National Documentation Packages in Refugee Determination Proceedings states that "the RPD provides the parties with information as to where the [National Documentation Package] can be found on the Board's website, and it is the parties' responsibility to check the IRB website for the newest version of the relevant NDP(s) prior to their hearing."[20] This is also stated in the Important Instructions claimants receive when they make their claim: “You should also check the IRB website for the newest version of the NDP prior to your hearing” and is stated in similar terms in the Claimants’ Guide.
  • Parties will cooperate with the asylum process and supply all pertinent information. The Federal Court holds that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose.[21] The legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should assist the examiner to the full in establishing the facts of their case and supply all pertinent information concerning themself and their past experience.[22] The Federal Court states that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order, including obligations to cooperate with the asylum process, which may include presenting themselves to authorities and submitting asylum claims promptly, or complying with procedures to regularize their stay."[19] For details about how this principle takes shape in the RPD Rules, see: Canadian Refugee Procedure/Documents#What documents does a party need to provide when?.
  • Claimants will comply with the law and be honest. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information.... There is a duty on an applicant to ensure that their submissions are complete and correct".[23] This obligation stems from, among other things, the 1951 Convention Related to the Status of Refugees Art. 2, which provides that, “Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”[22] Similarly, the legally non-binding refugees handbook issued by UNHCR stipulates that the applicant should tell the truth.[22] The Federal Court has stated that "refugees and asylum-seekers have duties and obligations to respect national laws and measures to maintain public order".[19] In Canada, such legal obligations require that a claimant answer truthfully all questions put to them in the refugee claim process.[24]
  • Deficiencies in counsel's conduct are properly attributed to their clients. The Federal Court has held that in immigration matters, "the jurisprudence is clear that applicants have to provide complete and accurate information and are bound by the submissions made by those who represent them in the process".[23] The general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel.[25] This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claimant process, which note that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines."[26] That said, there are exceptions to this principle where counsel’s conduct falls sufficiently below the standard expected of competent counsel: Canadian Refugee Procedure/Counsel of Record#In what contexts will counsel incompetence render a hearing unfair?.
  • Concerns about defects of procedural fairness should be raised by parties at the earliest opportunity. The general rule is that a party should raise allegations about procedural fairness at the earliest possible opportunity.[27]

Principles about the manner in which the Board is to exercise its discretionEdit

The Code of Conduct for Members of the Immigration and Refugee Board of Canada is based on the IRB's dedication to the following values - honesty, good faith, fairness, accountability, dignity, respect, transparency, openness, discretion, cultural sensitivity and loyalty.[28] These values should be evinced by all of the Board's conduct and decisions. In particular:

  • Justice must be seen to be done. The Board has an institutional responsibility to ensure that the tribunal's adjudication is both actually performed at an optimum level of competency, fairness and objectivity and is perceived to have been so performed.[5] A tension exists between the imperative to be efficient and work rapidly through multiple cases on the one hand, and the imperative to be considered, deliberative, and just on the other (and to be seen to be so).[29] The first set considerations must not undermine respect for the second sort. For example, in one hearing where the Refugee Protection Division had double-booked a Member, who then tried to complete two hearings in the time ordinarily allotted to one, the court commented as follows: "while I find it commendable from an efficiency standpoint that the Member was prepared to deal with both matters, the aura of urgency that pervaded the hearing undermined the process. A reading of the transcript suggests some sense of impatience and concern on the part of the Member about being able to complete the hearing."[30]
  • Administrative convenience should not override fundamental justice, which includes procedural fairness.[31] Asylum adjudication is situated within administrative law structures, where tensions between values such as efficiency and economy are precariously balanced with fairness and justice.[32] As noted by Lord Dyson in his 2015 decision condemning the so‐called Detained Fast Track (DFT) in the United Kingdom, "justice and fairness should not be sacrificed on the altar of speed and efficiency".[33] Instead, as Canada's Federal Court holds, the Board “… is required to strike a balance between expeditious proceedings on the one hand and procedural fairness or natural justice on the other.”[34]
  • The rules should not be interpreted in a way that is overly rigid. In interpreting these rules, the courts have held that one must "avoid the mire of procedural dogma"[35] as "procedure should be the servant of justice, not its mistress".[36] The Federal Court has stated that "the door should not slam shut on all those who fail to meet ordinary procedural requirements. Such a restrictive reading would undermine Canada’s commitment to its refugee system and underlying international obligations".[37] The court has gone on to note that "the opportunity to free a family from the scourge of persecution should not rest on an overly rigid application of procedural requirements."[38] The tenor of the Rules is that flexibility is needed to guard against form trumping substance and the interests of justice and to guard against decisions not being made on their merits.[39] Refugee applications may be allowed to proceed, despite procedural defects, to ensure that the requirements of natural justice are fulfilled.[40] This applies with special force during the period of the Covid-19 pandemic; the principle set out in the Refugee Protection Division: Practice Notice on the resumption of in-person hearings is that the Board will apply the rules flexibly in light of Covid-19.[41]
  • Claimants are entitled to representation and rules should be relaxed for unrepresented litigants. The representation of refugee claimants is described as “an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[42] The court has stated that an unrepresented party “is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants”.[43]
  • The Board's procedures should not be restricted to the judicial paradigm. The courts have recognized that administrative agencies such as the IRB "are often required to be procedurally innovative in order to handle a heavy caseload effectively and to make the most efficient use of scarce resources."[44] The Board’s procedure "should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nonetheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence."[45] For example, the court has held that "A hearing held by the Board should not be turned into a trial. The consequences that attach to these hearings are serious and the measure of procedural fairness must be commensurate. However, it does not reach the level of disclosure found in criminal law, for instance."[46]
  • Members should exercise their discretion with a spirit of justice and sensitivity. The Board states in its Guideline 8 that all persons appearing before the IRB need to be treated with sensitivity and respect.[47] Caselaw from the Federal Court also states that the member must at all times be attentive and sensitive to claimants.[48] The UNHCR Handbook is considered highly influential in how refugee adjudication should be approached, even if its clauses are not, in and of themselves, law in Canada.[49] The following comment about how the task of refugee status determination should be approached is instructive: "Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an ‘undeserving case’."[50]
  • Claimants should be given the benefit of the doubt in appropriate circumstances.[51] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides that the benefit of the doubt should be granted to the claimant in certain circumstances: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt." However, as per the Supreme Court of Canada, it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts, and the available evidence.[52] The UNHCR Handbook states: "The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."[53]
  • The Board should have strong reasons before attributing dishonesty or malicious intent to a claimant. The Federal Court has held that "attributing dishonesty or malicious intent to an applicant is subject to a very high threshold".[54]
  • Parties can expect consistency and the Board should decide like cases in the same manner. For more details, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be consistent across the Board.

IRPA ss. 3(2) and 3(3): Interpretation principles as derived from the ActEdit

This section will set out the objectives and application provisions in the Act and then provide commentary on some specific ones. In the words of Sharryn Aiken, et. al., one of the enduring features of Canadian immigration law since the 1976 Immigration Act has been "a complex and contradictory set of objectives".[55] Those objectives, in so far as they concern refugees, read as follows in the current IRPA:

Objectives — refugees
3...
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;
(f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada;
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and
(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

Application
(3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and
(f) complies with international human rights instruments to which Canada is signatory.

There is a statutory interpretation convention to the effect that statements of objectives in legislation serve to constrain executive discretion in implementing the law. In the words of Sharryn Aiken, et. al., however, the objectives of the IRPA "are so plentiful and far-ranging that they arguably serve to support any potential discretionary implementation choice."[56] The above objectives can be compared to the section of the IRPA that sets out objectives for the immigration (as opposed to humanitarian or refugee) streams:

Objectives — immigration

3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; (f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system; (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and

(j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

IRPA Section 3(2)(a) - The refugee program is about saving lives and offering protectionEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

This has been a long-standing provision in the ActEdit

This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[57]

The refugee program aims to offer protection, including the legal rights specified in the Refugee ConventionEdit

Section 3(2)(a) of the IRPA provides that the objectives of this Act with respect to refugees are, inter alia, to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. The protection envisaged is arguably not just protection from refoulement, but also the suite of affirmative rights enumerated in the Refugee Convention. The academic Alleweldt writes that the first and foremost objective of the 1951 Refugee Convention was to prevent refugees from becoming legal non-persons.[58] After the First World War, he states, the typical problem of refugees was the lack of any legal status in the State of refuge, which deprived them automatically of many rights and opportunities. Accordingly, the parties to the Refugee Convention envisaged, for humanitarian reasons as well as for practical reasons of cooperation, providing refugees with a status which would comprise a key set of their human rights and freedoms.

IRPA Section 3(2)(b) - Fulfilling Canada’s international legal obligations with respect to refugeesEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

This has been a long-standing provision in the ActEdit

This reflects one of the objectives that was inserted into the 1976 Immigration Act, which was “to fulfill Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted.”[57]

The IRPA should be interpreted in a way that ensures Canada fulfills its international legal obligations with respect to refugeesEdit

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law.[59] The Supreme Court of Canada holds that the provisions of the IRPA "cannot be considered in isolation from the international norms which they reflect".[60] Section 3(2)(b) of the Act reinforces that, where possible, the provisions of the IRPA should be interpreted in a way that fulfills Canada's obligations pursuant to, inter alia, the Refugee Convention.

The Vienna Convention on the Law of Treaties codifies public international law rules of treaty interpretation applicable to the interpretation of the Refugee ConventionEdit

The rules of treaty interpretation for discerning the content of Canada's international legal obligations with respect to refugees were codified in the Vienna Convention on the Law of Treaties. Art. 31 of the Vienna Convention on the Law of Treaties provides that:[61]

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Art. 32 of the Vienna Convention in turn provides that “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.[61]

This said, the Vienna Convention does not in and of itself apply to the Refugee Convention, given that the Vienna Convention applies only to treaties which are concluded by states after the Vienna Convention entered into force on January 27, 1980 (per Article 4 of that Convention).[62] As such, the Vienna Convention does not in and of itself apply to the Refugee Convention of 1951 or the Protocol to the Convention of 1967. That said, as Hathaway notes,[63] the Vienna Convention approach has been recognized by the International Court of Justice as embodying customary norms of treaty interpretation.[64] Those rules are generally regarded as a codification of the public international law rules of treaty interpretation as a matter of general (or customary) international law.[65] As such, Articles 31 to 33 of the Vienna Convention constitute a general expression of the principles of customary international law relating to treaty interpretation.[66] In this way, the norms of treaty interpretation embodied in the Vienna Convention are properly considered when interpreting the Refugee Convention, even if its articles do not sensu stricto apply to the Refugee Convention. For such reasons, in the context of the Refugee Convention, domestic courts in New Zealand,[67] the UK,[68] and Canada[69] have seen fit to apply Arts. 31 and 32 of the VCLT when interpreting the Refugee Convention.

Canada must perform its international legal obligations with respect to refugees in good faithEdit

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees are, among other things, to fulfill Canada's international legal obligations with respect to refugees. These obligations must be interpreted in good faith.[70] This is consistent with Art. 31 of the Vienna Convention, supra, which states that "a treat shall be interpreted in good faith". It is also consistent with Article 26 of the Vienna Convention, which requires States to perform their international treaty obligations in good faith. In international law, the concept of good faith, or bona fides, is taken to include duties of honesty, loyalty, and reasonableness.[71] That said, in Britain Lord Bingham has concluded that "there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do."[72] Relatedly, Canada's Federal Court has held that "an unduly textual and restrictive interpretation [of the IRPA]" that "would impose a result that is inconsistent with and contrary to the objectives of the IRPA" must be avoided.[73]

The Refugee Convention should be interpreted in good faith in light of its object and purposeEdit

Under Art. 31 of the Vienna Convention on the Law of the Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”.[74] This raises the question of what the object and purpose of the Refugee Convention are. The principal answer that emerges in the jurisprudence relates to the Convention's humanitarian purposes. The UK House of Lords has held that a ‘good faith’ interpretation of the Refugee Convention is one that works to bolster the effectiveness of its protection purpose, and thus seeks a construction consistent with humanitarian aims and not simply a literal linguistic approach.[75] These humanitarian aims are underscored in the IRPA with the statement at s. 3(2)(d) that "the objectives of this Act with respect to refugees are to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution". The academic Michelle Foster writes that "one perspective is that the aim of the Refugee Convention is fundamentally to pursue a social and human rights inspired purpose, namely to provide for the international protection of those individuals falling within the refugee definition."[76] The Supreme Court of Canada has noted the human rights purpose of the Refugee Convention, for example remarking upon its "obvious human rights purpose" in Németh v. Canada.[77] Similarly, Ezokola v Canada refers to the "overarching and clear human rights object and purpose [of the Refugee Convention]".[78] This is articulated as follows by the Supreme Court of Canada in Ward: the underlying objective of the 1951 Convention is "the international community's commitment to the assurance of basic human rights without discrimination."[79]

That said, the following words of caution from the Australian courts are apposite: "the demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives."[80] Indeed, Lord Bingham in the Uk has emphasized that the 1951 Convention was "a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other."[72] Foster suggests that it is possible to reconcile these two approaches by emphasizing that the 1951 Convention's focus is on "the need for co-operation in order adequately to deal with the humanitarian problem".[81] Drawing on Klabbers' view that if a treaty's substantive provisions deal with a particular topic, then it may be surmised that that topic is the treaty's object and purpose, Foster argues that the 1951 Convention's overwhelming purpose is a human rights one. In essence the treaty provides for refugees' rights and entitlements under international law.[81]

The Refugee Convention does not explicitly prescribe any particular Refugee Status Determination procedureEdit

The objectives of this Act include fulfilling Canada's international legal obligations with respect to refugees. How does that relate to refugee procedure? Canada's refugee status determination process reflects Canada's international obligations, including those stemming from the Convention Relating to the Status of Refugees of 1951. The challenge of refugee status determination is determining who is a “refugee” and, conversely, who is not. As to the process by which this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of the Office of the United Nations High Commissioner for Refugees, none of which address the issue of Refugee Status Determination (RSD).[82] In the words of the UNHCR’s Handbook on Procedures and Criteria, “the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status.”[83]

The procedures used by Canada must ensure the effectiveness of the substantive provisions in the Refugee ConventionEdit

Section 3(2)(b) of the Act specifies that the objectives of the IRPA with respect to refugees include fulfilling Canada's international legal obligations with respect to refugees. In ratifying the Refugee Convention, Canada has made a number of commitments, the most important of which is arguably the principle of non-refoulement enshrined in Article 33 of the Refugee Convention. How do such commitments relate to the procedures Canada selects for Refugee Status Determination? Hofmann and Löhr write that, with respect to the 1951 Convention, it might be stated that the Convention does not necessitate (or prohibit) any specific procedure as such, but obliges states not to introduce procedures which would result in applicants for asylum being returned or otherwise handed over - in violation of the principle of non-refoulement - to foreign authorities. This flows from the foundational principle of international law pacta sunt servanda, the rule that agreements must be kept,[84] in this case Canada's agreement to abide by the principle of non-refoulement. With respect to procedures, international courts have established the principle that a state's procedural rules must ensure the effectiveness of the substantive provisions of its international commitments. This has been held by, among others, the International Court of Justice in the LaGrand (Germany v. United States of America) case, where it ruled that the duty incumbent on states to ensure that their international obligations be fully respected implies that domestic procedural law must be construed in such a way as to give full effect to the purposes for which the substantive rights accorded in an international treaty are intended.[85] If a state uses deficient procedures, which lead to prohibited refoulement, the introduction of such procedures constitutes per se a violation of Article 33 of the Refugee Convention and its prohibition on non-refoulement.[86] This has implications for the procedures that a state selects; for example, UNHCR states that a consequence of a state’s non-refoulement obligation is a ‘duty of independent inquiry’.[87] Such a duty requires states to identify individuals in need of protection before returning or transferring them to a third country.[88]

The Refugee Convention should be regarded as a living instrument that evolves to meet contemporary needsEdit

The UK House of Lords has concluded that "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and the future world. In our view the Convention has to be regarded as a living instrument."[89] The Canadian Supreme Court has stated that "international conventions must be interpreted in light of current conditions".[90] The Vienna Convention on the Law of Treaties delierately does not constrain the meaning of terms in a treat to their meaning at the time of the treaty's conclusion. A limitation to this effect was deleted from Art. 31, para. 3(c) on the basis that this could restrict the evolution of the law and that, in any event, the correct meaning of the provision would be derived from an 'interpretation of the term "in good faith"'.[91]

There can only be one true interpretation of the Refugee ConventionEdit

See below: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that is coherent with interpretations by other states party to the Convention.

IRPA Section 3(2)(c) - Fair consideration is to be granted to those who come to Canada claiming persecutionEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

The importance of Board procedures being fair to the public perception of the refugee programEdit

In addition to ensuring overall fairness and facilitating the giving of evidence, procedural fairness is also about maintaining the integrity of the refugee determination process in the eyes of the public. For example, stakeholders may come to question the integrity of the system if they observe unfair, biased, stereotyped, arbitrary, or otherwise inappropriate processes that do not provide fair consideration to those who come to Canada and file a claim. As the legal philosopher Patricia Mindus argues, arbitrariness undermines legitimacy and erodes trust in the law in a deep way that is not easy to remedy.[92] Ensuring procedural fairness is in this way integral to maintaining the reliability of the hearing and refugee determination process and public support therefor.

This provision relates to the Canadian Bill of RightsEdit

Section 2(e) of the Canadian Bill of Rights states that no law of Canada shall be construed or applied so as to

abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.[93]

IRPA Section 3(2)(d) - Offering save havenEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;

The objective of this Act is to offer safe haven to specified persons and this is an enduring commitment unless an asylee's status ceasesEdit

The objectives of this Act with respect to refugees include offering safe haven to persons with a well-founded fear of persecution for a Convention reason, as well as those at risk of torture or cruel and unusual treatment of punishment. This obligation, which partly tracks the criteria of the Refugee Convention, reflects the fact that the 1951 Convention can be viewed as a third party agreement; a treaty whereby the contracting States take on obligations towards each other for the benefit of refugees who are by the same token provided with refugee rights.[94]

The "safe haven" that is to be offered to refugees is independent of other types of immigration status in Canada such as permanent residence. An applicant’s asylum status is not affected because their permanent residence status was lost or because their application for permanent residence in the country of asylum was refused.[95] Even where a refugee moves onward from a state which has granted international protection, that state bears ongoing obligations towards the individual, unless their status has ceased.[96] Indeed, even those who are granted status as protected persons by the IRB may not meet the criteria to become permanent residents or citizens in Canada: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#Other grounds of inadmissibility in the IRPA do not render claimants ineligible for a refugee hearing, but may nonetheless have consequences even where a claim is accepted. That said, once a refugee obtains a durable solution such as citizenship in Canada then there 'refugeehood' can rightfully be regarded as having ceased.

IRPA Section 3(2)(e) - Fair and efficient procedures that maintain integrity and uphold human rightsEdit

Objectives — refugees
(2) The objectives of this Act with respect to refugees are
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

Removal of non-credible refugee claimants is the law’s cornerstoneEdit

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. As Harold Troper notes, a concern that the refugee program must seek to address is the worry that "many of the refugee claimants, including some who successfully made it through the determination process, were not really legitimate refugees but individuals looking for a way around tough Canadian immigration regulations."[97] When the IRB came into existence, the government-stated programme delivery strategy stated that the removal of non-credible refugee claimants is the law’s cornerstone.[98]

The Act seeks to ensure that the system has both flexibility and rigourEdit

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees include the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This necessarily involves a balancing, one which Jennifer Bond and David Wiseman discuss when they write that the procedural framework governing Canada's asylum system contains a number of mechanisms aimed at enabling both flexibility and rigour.[99]

Amendments to the IRPA have emphasized giving decision-makers greater control over proceedings to increase efficiencyEdit

To increase the efficiency of hearings, procedures were amended following passage of the Balanced Refugee Reform Act (2010) and the Protecting Canada's Immigration System Act (2012) to give decision makers greater control over refugee protection proceedings.[100]

The objectives of this Act with respect to refugees are to establish efficient proceduresEdit

The Refugee Appeal Division, when considering issues of efficiency, has observed that an interpretation of the Act which would reduce duplication of work and having an additional, unnecessary, hearing is to be preferred.[101] This is also consistent with the introduction of the current version of s. 97 of the Act with the transition from the Immigration Act to the IRPA. IRPA expanded the scope of coverage to include persons who are at risk of torture and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence. Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of s. 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important." Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make Section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach". Section 162(2) of the IRPA provides that each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit; for further discussion of this, see: Canadian Refugee Procedure/Board Jurisdiction and Procedure#IRPA Section 162(2) - Obligation to proceed informally and expeditiously.

The procedures established should uphold Canada's respect for the human rights and fundamental freedoms of all human beingsEdit

Section 3(2)(e) of the IRPA provides that the objectives of the Act with respect to refugees are to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. This reflects the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination ... have agreed as follows: ...[102]

IRPA Section 3(2)(g) - Protecting the health and safety of Canadians and maintaining the security of Canadian societyEdit

Objectives - refugees
(2) The objectives of this Act with respect to refugees are ...
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and

This is worded identically to s. 3(1)(h) of the ActEdit

Section 3(1)(h) of the IRPA is worded identically, stating that "the objectives of this Act with respect to immigration are (h) to protect the health and safety of Canadians and to maintain the security of Canadian society". That provision was considered in Medovarski v Canada, in which the Supreme Court of Canada noted that "the objectives as expressed in the IRPA indicate an intent to prioritize security":

The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act.  Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.[103]

This objective is implemented through the grounds of inadmissibility found in ss. 34-42 of the IRPA.[104]

IRPA Section 3(3)(b) - This Act is to be applied in a manner that promotes accountability and transparency by enhancing public awareness of immigration and refugee programsEdit

Application
(3) This Act is to be construed and applied in a manner that
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

It is important that the public perceive the determinations made under the Act as being legitimateEdit

Section 3(3)(b) of the Act provides that that it is to be construed and applied in a manner that enhances public awareness of immigration and refugee programs. Refugee lawyer David Matas speaks to a policy concern related to this when he states that if the public lacks confidence in the refugee determination system “people will eventually give up all hope in the system. ... [T]hose concerned with protecting refugees will adopt extra-legal rather than legal strategies - a Canadian sanctuary movement is possible”.[105]

IRPA Section 3(3)(c) - This Act is to be applied in a manner that facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations, and non-governmental organizationsEdit

Application
(3) This Act is to be construed and applied in a manner that
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

Canada has an obligation to cooperate with the UNHCR and the IRPA should be construed and applied in a manner that facilitates and respects this obligationEdit

Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and international organizations. This provision of the Act relates to Canada's international obligations. Opinions and interpretations by the UNHCR are of particular interest because of Article 35 of the Refugee Convention, which provides that member states have an obligation to facilitate the duty of UNHCR in supervising the application of the provisions of the Convention. Article 2(1) of the 1967 Protocol similarly stipulates that “[t]he States Parties to the present Protocol undertake to co-operate with the Office of the United Nations High Commissioner for Refugees [...] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol”.[106] Furthermore, the preamble to the Refugee Convention reads:

The High Contracting parties, ... noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner, ... have agreed as follows: ...[102]

That said, there are evident limits to the UNHCR's supervisory role which does not include a mandate to provide an authoritative interpretation of the Refugee Convention.[107] Accordingly, the UNHCR can only issue guidance on the 1951 Convention's interpretation. Similarly, while Executive Committee Conclusions may be instructive on interpretation and applying the 1951 Convention, they are not binding on States.[107] The Federal Court of Appeal recognized this in Jayasekara v Canada in which Justice Letourneau stated that "the [UNHCR] handbook cannot override the functions of the Court in determining the words of the Convention."[108]

"Burden sharing" between states is a fundamental principle of the Refugee ConventionEdit

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the importance of "burden sharing" in the refugee regime. It is said that the Refugee Convention is based on two principles: non-refoulement, the rule that asylum seekers cannot be turned away or forced to return to their countries of origin; and responsibility-sharing, the idea that member nations should share the costs, labor, and risks of refugee aid.[109] While the first principle is explicitly outlined in the Convention; the second is implicit in the preamble to the Refugee Convention, which reads:[110]

The High Contracting parties, ... considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation, ... have agreed as follows: ...[102]

James Hathaway writes in The Law of Refugee Status that burden sharing was historically one of the core motivations for the Refugee Convention:

... the majority of the states that drafted the Convention sought to create a rights regime conducive to the redistribution of the post-war refugee burden from European shoulders. The Europeans complained that they had been forced to cope with the bulk of the human displacement caused by the Second World War, and that the time had come for all members of the United Nations to contribute to the resettlement of both the remaining war refugees and the influx of refugees from the Soviet bloc. Refugees would be more inclined to move beyond Europe if there were guarantees that their traditional expectations in terms of rights and benefits would be respected abroad. The Convention, then, was designed to create secure conditions such as would facilitate the sharing of the European refugee burden.[111]

Today, most refugees reside not in Europe, but in low-income states; the world’s six richest countries host under 10% of the world’s refugee population, while the majority are situated in low-income states, which face significant resource and governance challenges of their own.[112] 80% of the world’s refugee population are living in countries neighbouring their own.[113] As an example, Canada has welcomed 1,088,015 refugees since 1980,[114] including through the resettlement (325,000[115]) and in-Canada asylum processes. This represents about 3% of the current Canadian population, in comparison to Jordan today which hosts refugees equivalent to 9% of its current population and Lebanon which hosts refugees equivalent to more than 20% of its current population, all with substantially fewer financial resources than has Canada.[116]

The principle of burden sharing has a number of implications. First, it is to this end that the UNHCR Executive Committee has encouraged States and UNHCR to continue to promote, where relevant, regional initiatives for refugee protection and durable solutions.[117] The Federal Court has noted that "in principle, international refugee law does not confer upon refugees the right to choose their country of asylum".[118] The Federal Court has noted that international refugee law also "does not authorize their irregular movement between successive countries solely in order to benefit from more favourable conditions."[19] The Federal Court has also cited with approval the UNHCR document Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-seekers (2019) which includes a related discussion.[19] One manifestation of this principle in the IRPA is through the responsibility-sharing arrangement between the "Five Eyes" countries established by s. 101(c.1) of the Act: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim. All this said, it should be noted that under international law refugees are under no obligation to apply for asylum in particular states at any specific stage of their flight from danger.[119] Indeed, the 1951 Convention at the time of its adoption was seen as an instrument of burden sharing and binding obligations upon States were considered a requirement for effective international cooperation as well as more equal commitments and sharing of responsibility with regard to refugee problems.[120]

States should do everything in their power to prevent the problem of refugees from becoming a cause of tension between statesEdit

Section 3(3)(c) of the Act provides that it is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. This provision reflects the preamble to the Refugee Convention, which reads:

The High Contracting parties, ... expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States, ... have agreed as follows: ...[102]

Relatedly, in 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed toward States. The Declaration states that granting asylum is a peaceful and humanitarian act that cannot be regarded as unfriendly by any other State.[121]

The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”Edit

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. Canada’s Senate, in amending relevant bills, has been said to have tried to ensure that the safe third country provisions in the IRPA do not result in “refugees in orbit”, refugees forced to travel from country to country in search of protection.[122] A “refugee in orbit” situation is constituted when:

country A designates country B as a safe third country, thereby entitling country A to refuse to adjudicate the claim of an asylum seeker who arrived in country A via country B. However, in the absence of a readmission agreement, country B may refuse to re-admit the asylum seeker, and send the person to country C, who may in turn bounce the person concerned to country D, and so on.[123]

For more details, see Canadian Refugee Procedure/Safe Third Countries, and in particular Article 3 of the Safe Third Country Agreement, which exists to prevent this.

The Act should be interpreted in a way that is coherent with interpretations by other states party to the ConventionEdit

Section 3(3)(c) of the Act provides that this statute is to be construed and applied in a manner that facilitates cooperation between the Government of Canada and foreign states. In this way, the IRPA should be interpreted in a way that avoids fragmentary jurisprudence which undermines the coherence of the international protection system.[124] Courts in the UK have phrase this obligation thusly: "in principle there can only be one true interpretation of a treaty".[125] As such, decisions from the UK frequently stress that each State "must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty".[125] For the same reason, decisions in Canada frequently canvass jurisprudence from other countries when interpreting the meaning of the Refugee Convention and the IRPA.[126] See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making should be predictable and consistent across the Board.

IRPA Section 3(3)(d) - The Act is to be applied in a manner that complies with the Charter of Rights and FreedomsEdit

Application
(3) This Act is to be construed and applied in a manner that
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

The fact that Charter rights are at play in Board proceedings means that the extent of procedural fairness owed to claimants is highEdit

The court has stated that “The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.”[3]

Charter issues should generally be raised before the DivisionEdit

Under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court.[127] For further discussion on this, see: Canadian Refugee Procedure/Notice of Constitutional Question.

Decisions taken under this Act are to be consistent with the principles of equality and freedom from discriminationEdit

Section 3(3)(d) of the IRPA provides that the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination. Indeed, this tracks the transformation that has been seen over the past century in the nature of international migration and its increasingly multiethnic and global character. When the 1951 Refugee Convention was being negotiated, it had a primarily European orientation, the prospect of refugees coming in significant numbers from further afield was thought to be nil; for example, in the words of the UK delegate to the conference of plenipotentiaries that negotiated the 1951 Convention, "[the risk of European states facing] a vast influx of Arab refugees was too small to be worth taking into account."[128] This thinking about the makeup and source of refugees seeking asylum has shifted dramatically to the point where today it is recognized that most refugees are in low income countries and individuals claim asylum in Canada against countries throughout the world. See also: Canadian Refugee Procedure/The right to an unbiased decision-maker#Where a member pursues questioning with a discriminatory attitude.

Decisions taken under this Act are to be consistent with the equality of English and French as the official languages of CanadaEdit

Section 3(3)(d) of the Act states that it is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Canadian Chart of Rights and Freedoms, including its principle of the equality of English ad French as the official languages of Canada. For a discussion of this, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Language of proceedings.

IRPA Section 3(3)(f) - The Act is to be applied in a manner that complies with international human rights instruments Canada has signedEdit

Application
(3) This Act is to be construed and applied in a manner that
(f) complies with international human rights instruments to which Canada is signatory.

In general, in Canada legislation should be presumed to conform to international lawEdit

It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.[129] The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.[130] The Supreme Court of Canada articulated this rule in Baker v. Canada when it adopted the following statement from Driedger on the Construction of Statutes:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[131]

This provision was added to the IRPA and was not present in the former Immigration ActEdit

Sharryn Aiken, et. al., write in Immigration and Refugee Law: Cases, Materials, and Commentary that there was considerable excitement in migrant advocacy circles regarding para 3(3)(f) of the IRPA stating that the Act is to be construed in a manner that "complies with international human rights instruments to which Canada is signatory." They note that this provision seemed to provide a potential shortcut for direct access to international human rights principles.[132] However, on the basis of the Federal Court of Appeal's decision de Guzman v. Canada those authors conclude that "The de Guzman decision ensured that para 3(3)(f) is understood to reflect existing Canadian law with respect to international obligations and therefore to be essentially meaningless window dressing that adds nothing new to the interpretive framework for Canadian immigration law."[133]

International human rights instruments are determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary  Edit

Section 3(3)(f) of the IRPA goes beyond the general principle of statutory interpretation described above. When interpreting any provision of IRPA, account must be had of Canada’s international human rights obligations and provisions should be interpreted in a manner consistent with Canada’s international obligations, where possible. In De Guzman v. Canada the court commented that the words “shall be construed and applied in a manner that complies with …” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of IRPA. By providing that IRPA “is to be” interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of IRPA, in the absence of a clear legislative intent to the contrary.[134] As Bastarache J of the Canadian Supreme Court held in Pushpanathan, the "overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place".[135] That said, unambiguous provisions of the IRPA must be given effect even if they are contrary to Canada’s international obligations or international law.[136]

Regard should be had to international human rights instruments that Canada has signed, whether or not Canada has ratified themEdit

In de Guzman v. Canada the court commented that the sources of international law described in paragraph 3(3)(f) comprise some that are binding on Canada in international law, and some that are not. The paragraph applies to instruments to which Canada is signatory. An international instrument is not legally binding on a signatory State until it has also ratified it, unless the instrument provides that it is binding when signed. Signature normally evinces an intention to be bound in the future, although it may also impose an immediate obligation on the signatory not to take measures to undermine the agreement.[137]

What are the international human rights instruments to which Canada is a signatory?Edit

As the Federal Court of Appeal has noted, the IRPA "does not list, let alone set out the text of, the measures to which paragraph 3(3)(f) applies."[138] It went on to note that the phrase "international human rights instruments to which Canada is signatory" is "far from self-defining".[138] The Department of Justice provides the following list, International Human Rights Treaties to which Canada is a Party, which may serve as a starting-point for such an analysis:[139]

  • Convention on the Prevention and Punishment of the Crime of Genocide (1952)
  • International Convention on the Elimination of All Forms of Racial Discrimination (1970)
  • International Covenant on Economic, Social and Cultural Rights (1976)
  • International Covenant on Civil and Political Rights (ICCPR) (1976)
    • Optional Protocol to the ICCPR (complaint mechanism) (1976)
    • Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (2005)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981)
    • Optional Protocol to CEDAW (complaint mechanism) (2002)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)
  • Convention on the Rights of the Child (CRC) (1991)
    • Optional Protocol to the CRC on the Involvement of Children in armed conflict (2000)
    • Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (2005)
  • Convention on the Rights of Persons with Disabilities (2010)
    • Optional Protocol to the Convention on the Rights of Persons with Disabilities (2018)

This provision does not apply to international humanitarian law instruments, purely regional instruments, and texts which are not signedEdit

Section 3(3)(f) of the IRPA provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This arguably excludes a number of types of instruments, including:

  • Instruments that are not human rights instruments, but are instead humanitarian law instruments: The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), which at Art. 45, para. 4 prohibits transferring a protected person "to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.".[140] This instrument forms part of international humanitarian law, not international human rights law, and thus does not fall within the ambit of IRPA s. 3(3)(f).
  • Instruments that are not international instruments, but are instead regional ones: Canada is not a party to the American Convention on Human Rights. Nevertheless, as a member of the Organization of American States, it is bound by the terms of the American Declaration of the Rights and Duties of Man (“American Declaration”).[141] This instrument specifies the fundamental rights to which each person is entitled, and which each member State of the Organization of American States (OAS), like Canada, is bound to uphold. The OAS Charter and the American Declaration provide the source of legal obligations applicable to Canada.[142] That said, this instrument is arguably not relevant to s. 3(3)(f) of the IRPA given that it provides that the Act “is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”, and the American Declaration, rather than being an international instrument is rather a regional one. Even so, such instruments would nonetheless be relevant to the interpretation of this statute pursuant to general rules of statutory interpretation which involve considering Canada's international legal obligations when conducting statutory interpretation.
  • Instruments that are not signed: For example, the 1948 Universal Declaration of Human Rights is not a treaty, but instead a non-binding (yet aspirational) declaration that was voted upon by Member States of the United Nations. By its terms the Universal Declaration of Human Rights was not designed to describe binging obligations by only a 'common standard of achievement', as stated in the preamble to the declaration.[143] As such, given that this document was not signed, and as such countries cannot be said to be signatories to this declaration, it should not be regarded as one of the instruments contemplated by s. 3(3)(f) of the IRPA.

The refugee system is inextricably linked with the concept of human rightsEdit

Section 3(3)(f) of the Act provides that it is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory. This should be read in conjunction with Section 3(2)(e) of the IRPA, which provides that the objectives of this Act with respect to refugees are to, among other things, uphold Canada’s respect for the human rights and fundamental freedoms of all human beings. These legislative provisions speak to the way that the plight of refugees is inextricably linked with human rights violations. As refugee lawyer David Matas writes, “the plight of refugees and human rights violations are not two problems, but different facets of the same problem. Human rights violations are at the root cause of mass exoduses.”[144]

There is a debate about whether the Refugee Convention itself should be considered a “human rights instrument”, within the meaning of s. 3(3)(f) of the Act. Prominent refugee law academics such as McAdam, author of the leading text The Refugee in International Law, argue that refugee law is a specialized area within human rights law.[145] UNHCR is said to have adopted this approach and has pronounced that “the human rights base of the Convention roots it quite directly in the broader framework of human rights instruments of which it is an integral part.”[146] The preamble to the Convention itself notes that "The High Contracting parties, considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, ... have agreed as follows:".[102] Brennan CJ of the High Court of Australia relied on the Preamble when making the following comment about the Refugee Convention: "the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms."[147]

Given section 3(2)(b) of this legislation, which specifically provides that the objectives of this Act with respect to refugees are “to fulfil Canada’s international legal obligations with respect to refugees”, it has not been necessary to resolve the question of whether the Refugee Convention is one of the instruments contemplated by s. 3(3)(f) of the Act, since it is clear that the IRPA should be construed and applied in a manner that complies with the Refugee Convention whenever possible.

ReferencesEdit

  1. Singh, [1985] 1 SCR 177, at 212.
  2. Immigration and Refugee Board of Canada, Code of Conduct for Members of the Immigration and Refugee Board of Canada, Effective Date: April 9, 2019, <https://irb-cisr.gc.ca/en/members/Pages/MemComCode.aspx> (Accessed May 3, 2020), at section 5.
  3. a b Geza v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, para. 53.
  4. UN doc CAT/C/34/D/233/2003 (20 May 2005).
  5. a b S. Ronald Ellis, The Corporate Responsibility of Tribunal Members, Canadian Journal of Administrative Law & Practice, February 2009, 22 Can. J. Admin. L. & Prac. 1, <http://www.ccat-ctac.org/CMFiles/Ron%20Ellis/21.TheCorporateResponsibilityofTribunalMembers.pdf#page15> (Accessed July 25, 2020), page 10.
  6. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 52.
  7. Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: https://www.refworld.org/docid/50ceedc72.html [accessed 18 August 2020], para. 36.
  8. UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  9. Sundaram v. Canada (Minister of Citizenship and Immigration), 2006 FC 291 (CanLII), par. 12, <http://canlii.ca/t/1mr2v#par12>, retrieved on 2020-04-11.
  10. Ngyuen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1001, [2005] F.C.J. No. 1244 (QL), at para. 17.
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